OT:RR:CTF:FTM H312097 MD
Center Director
CEE - Agriculture and Prepared Products
U.S. Customs and Border Protection
One World Trade Center, Suite 50-200 New York City, New York 10007
Re: Application for Further Review of Protest No. 1001-19-100242; Classification of Calcified Seaweed Powders
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1001-19-100242, timely filed by Sandler, Travis, & Rosenberg P.A., on behalf of Stauber Performance Ingredients (“Stauber” or “Protestant”), regarding U.S. Customs and Border Protection (“CBP”) tariff classification of calcified seaweed powders under subheading 2106.90.9898, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). On March 17, 2021, a conference was held to discuss Protestant’s case and the information therein. During this conference, we requested supplemental information to assist in our ultimate determination. This information was furnished on March 17, 2021 and was considered alongside Protestant’s initial AFR submission.
FACTS:
The calcified seaweed powders at issue (Aquamin F and Lithothanmium Powder) are 100% pure seaweed that has been heat-treated, dried, and filtered by physical processes to remove impurities and ground. According to the Protestant, the result is a dried, ground seaweed. Aquamin F and Lithothanmium Powder are the same product. Lithothamnion powder is essentially the common name for Aquamin F though there are slight differences in their production flow. They are both 100% calcified seaweed powders, a natural mineral source produced from calcareous marine algae (Lithothamnion spp.) and are sold for use in the fortification of food, beverage and supplement products, and to promote bone, joint, and digestive health. The seaweed is harvested from the North Atlantic seabed. Aquamin F is manufactured in Microferm Ltd, UK.
The merchandise was entered under subheading 1212.21.0000, HTSUSA, as “seaweeds and other algae… whether or not ground… used primarily for human consumption” with a free duty rate. CBP subsequently reclassified the calcified seaweed powders at issue under subheading 2106.90.9898, HTSUSA, as other food preparations. Protestant claims that the classification under subheading 1212.21.0000, HTSUSA, was proper since the processing does not exceed the scope of heading 1212, HTSUS, which covers dried, ground seaweed.
ISSUE:
What is the proper classification for the merchandise?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, GRIs 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
The 2018 HTSUS provisions under consideration are as follows:
1212 Locust beans, seaweeds and other algae, sugar beet and sugar cane, fresh, chilled, frozen or dried, whether or not ground; fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus sativum) of a kind used primarily for human consumption, not elsewhere specified or included:
Seaweeds and other algae:
* * *
1212.21.0000 Fit for Human Consumption
* * *
2106 Food preparations not elsewhere specified or included:
* * *
2106.90 Other:
* * *
Other:
* * *
Other:
* * *
Other:
* * *
Other:
* * *
2106.90.98 Other:
* * *
2106.90.9898 Other:
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). While neither legally binding nor dispositive, the ENs “provide a commentary on the scope of each heading” of the HTSUS and are “generally indicative of [the] proper interpretation” of these headings. See id.
In applicable part, the ENs for Heading 1212 read as follows:
This heading covers all seaweeds and other algae, whether or not edible. They may be fresh, chilled, frozen, dried or ground. Seaweeds and other algae are used for various purposes (e.g., pharmaceutical products, cosmetics, human consumption, animal feeding, fertilisers).
* * *
In applicable part, the ENs for Heading 2106 read as follows:
This heading includes, inter alia:
(16) Preparations, often referred to as food supplements or dietary supplements, consisting of, or based on, one or more vitamins, minerals, amino acids, concentrates, extracts, isolates or the like of substances found within foods, or synthetic versions of such substances, put up as a supplement to the normal diet. It includes such products whether or not also containing sweeteners, colours, flavours, odoriferous substances, carriers, fillers, stabilisers or other technical aids. Such products are often put up in packaging with indications that they maintain general health or well-being, improve athletic performance, prevent nutritional deficiencies or correct sub-optimal levels of nutrients.
* * *
Protestant contends that both “Aquamin F” and “Lithothanmium” powders are 100% calcified seaweed powder. Specifically, Protestant notes that “Lithothanmium” is “essentially the common name for Aquamin F”, despite “slight differences in their production flow”. Turning to an analysis of these production lines, the chemical composition of each product, and their intended purpose, we agree with Protestant’s contention that “Aquamin F” and “Lithothanmium” powders are fundamentally identical.
As supplied by Protestant, the production flow of “Aquamin F” powder is as follows. First, calcified seaweed (of the Lithothanmion genus) is harvested from the seabed. This seaweed is subject to preliminary washing and screening before an hour-long pasteurization process in a mixture of water and hydrogen peroxide. The seaweed is then dried in a rotary drum for twenty minutes before being milled, sieved, and bagged under sterile conditions. Between the processes of milling, sieving, and bagging, rare earth magnets are utilized by the manufacturer. While this portion of the manufacturing process is not described in-depth by Protestant, our research indicates that the use of magnets within the manufacture of seaweed powder(s) is to “remove eventual metallic impurities” and is relatively common within the industry.
The production flow of “Liththanmium” powder is virtually identical to that of “Aquamin F” powder. Calcified seaweed of the Lithothanmion genus is harvested from the seabed and is subject to preliminary washing and screening. Afterwards, the seaweed undergoes additional washing in deionized water for two hours before being dried in a rotary drier. After drying, the seaweed is milled, sieved, and bagged in sterile conditions.
A look at the physical characteristics of “Aquamin F” and “Lithothanmium” powders highlights their mutual identity. Whereas “Aquamin F” is “off-white” in coloring, “Lithothanmium” is a “grey” powder. That being said, “Aquamin F” and “Lithothanmium” are “soluable in weak acids” but “insoluable in water”, odorless, and tasteless. Their mutual identity is further established in their virtually identical chemical compositions. Both “Aquamin F” and “Lithothanmium” powders consist of 32% Calcium, 2.2% Magnesium, and approximately 65% Other Mineral and Amino Acids.
Furthermore, both “Aquamin F” and “Lithothanmium” powders are intended for use in “food, nutraceuticals and dietary supplements.” Both powders are also packaged in 20-25 kilogram bags with “food grade polyethylene liner[s]” and have an approximate shelf life of three years. With only minor and inconsequential differences in production and final coloring, which do not impact the ultimate chemical composition and intended usage of “Aquamin F” nor “Lithothanmium” powders, we agree with the Protestant that both powders are fundamentally identical for the purposes of classification.
With mutual identity established, Protestant asserts that both calcified seaweed powders should be classified under subheading 1212.21.0000, HTSUSA, providing for “seaweeds and other algae… whether or not ground… fit for human consumption.” In support of this position, Protestant cites to the Explanatory Notes (“ENs”) of heading 1212, HTSUS, and its application in precedential CBP rulings. Specifically, Protestant turns to EN 1212(a), which provides:
This heading covers all seaweeds and other algae, whether or not edible. They may be fresh, chilled, frozen, dried or ground. Seaweeds and other algae are used for various purposes (e.g. pharmaceutical products, cosmetics, human consumption, animal feeding, fertilisers.)
Protestant claims that the text of the EN is broad, and “specifically identifies dried seaweed and algae used for various purposes including human consumption.” As a result, the Protestant argues that “seaweed prepared for human consumption by means of drying and grounding into powder are not excluded from heading 1212, HTSUS.” The language of EN to heading 1212, HTSUS, covers all seaweeds and other algae. This seaweed or algae may take any number of forms, including dried or ground seaweed intended for human consumption. On this basis, we agree with the Protestant – the calcified seaweed powders are not excluded from heading 1212, HTSUS.
It is important to note that certain preparations of seaweed – such as roasting – are not covered by the text of the provision, and would be excluded from heading 1212, HTSUS. Protestant looks to two specific rulings to assert that the calcified seaweed powders at-issue are not excluded on the basis of their preparation. See Headquarters Ruling Letter (“HQ”) 088315, dated April 30, 1991; and HQ H272093, dated November 7, 2017.
In HQ 088315, dated April 30, 1991, it was found that “seaweed which has been cut, made into a paste, flattened to a sheet, dried naturally, then roasted” was properly classified under 2008.99.9000, HTSUSA, which provides for: “Fruit, nuts and other edible parts of plants, otherwise prepared or preserved, whether or not containing added sugar or other sweetening matter or spirit, not elsewhere specified or included: Other, including mixtures other than those of subheading 2008.19: Other: Other: Other.” CBP specifically stated that the seaweed of heading 1212, HTSUS, is limited to seaweed prepared no further than drying or reduction in size. Cooking, roasting, or the addition of other ingredients result in food preparations based on seaweed. HQ 950002, dated November 13, 1991, elaborated on this classification, stating that “seaweed of heading 1212, HTSUSA, is limited to seaweed primarily in its natural, that is, non prepared state, except for drying or reduction in size.” It further clarified that “[s]ince the dried seaweed… is roasted, the product is classifiable in heading 2008,” specifically in 2008.99.0000, HTSUSA.
This precedent was affirmed in HQ 952635, dated October 5, 1993, where a delineating line between dried and roasted seaweed was set forth. Specifically, HQ 952635 stated that “dried seaweed in which an electric dryer was used to extract 85 per cent of the water contained in the seaweed” was classified under 2008.99.9000, HTSUSA. The moisture content of the seaweed at-issue was also applied in HQ 952636, dated October 8, 1993, when it held that “Yaki Nori” (discussed in both HQ 088315 and HQ 950002) was properly classified under 2008.99.9000, HTSUSA.
New York Ruling Letter (“NY”) 810717, dated June 5, 1995, elaborated on the criteria for the classification of seaweed products when it differentiated two different seaweed products. Specifically, NY 810717 held that “dried seaweed [which] is processed in an electric drying machine which operates at a temperature of 70 degrees centigrade and removes the moisture from the seaweed” was properly classified under subheading 1212.20.0000, HTSUSA. In contrast, “dried roasted seaweed [which] is first dried in the electric drying machine [as described above] and then roasted in a toasting machine at a temperature of 80 degrees centigrade” was classified under heading 2008, HTSUS. In order to differentiate between drying and the cooking process of roasting, the importance of temperature and moisture content (as well as the processes by which the moisture content is removed) were underscored in three rulings within the last decade. See NY N194304, dated December 15, 2011; HQ H272093, dated November 7, 2017; and HQ H295133, dated April 29, 2020.
In HQ H272093, dated November 7, 2017, there was contention as to whether a dried seaweed product at-issue had been “roasted” in one of two processing operations. In the first operation, the fresh raw seaweed was “rinsed, cut and cleaned, then mixed with water and placed in sheets, dried, stripped, selected and graded.” In the second operation, the seaweed was “placed on a drying line”, which “occur[red] naturally and without the aid of any machinery.” The contention arose due to the labelling of the processing flowcharts as for “dried seaweed” and “roasted seaweed”, despite no evidence that either process included any form of roasting. With the record absent of any actual roasting of the seaweed, and the CBP Laboratory unable to definitively “conclude whether the seaweed at issue was roasted or dried”, CBP deferred to the processing flowcharts – none of which identified any roasting. Finding that the seaweed was only subject to drying, we found that it was classifiable under heading 1212, HTSUS; specifically, subheading 1212.21.0000, HTSUSA.
The subject products are not akin to products previously classified by CBP outside of heading 1212, HTSUS, and CBP’s rulings are distinguishable from this case. In this case, processing of “Aquamin F” and “Lithothanmium” powders begins with the harvesting of seaweed of the Lithothanmion genus form the seabed and continue with “preliminary washing” and “screening.” While the terminology of the next step differs, both “Aquamin F” and “Lithothanmium” manufacturing processes continue with some form of heating and drying. For “Aquamin F”, this comes in the form of “pasteurization” – a common application of mild heat to remove pathogens and extend shelf life. “Lithothanmium” on the other hand is subject to an extremely similar, “washing [in] [d]eionized water” at a comparable level of heat for a marginally higher period of time. After this heating and drying, both manufacturing processes consist of “milling, sieving, and bagging.” While the “Aquamin F” procedure also consists of the use of rare earth magnets; as previously discussed, this process has no material impact on the ultimate product.
Put simply, the manufacturing processes for “Aquamin F” and “Lithothanmium” powders, as presented via flowchart, consist of the following crucial steps: harvesting, preliminary washing/screening, pasteurization/heating and drying, milling, sieving, and bagging. Other than drying or reduction in size, there is no material change in the calcified seaweed from harvesting to sale. The products in this case have undergone a single industrial drying process in a rotary dryer, which did not result in the cooking process of roasting of the imported products. In effect, the “Aquamin F” and “Lithothanmium” powders are merely products consisting of dried seaweed which have been reduced in size. Furthermore, there are no other ingredients added to the products. We have consistently found that dried seaweed, classifiable under heading 1212, HTSUS, are suitable and fit for human consumption. See HQ H272093, dated November 7, 2017; NY 810717, dated June 5, 1995; and NY 862685, dated May 3, 1991. As the products involved in this case are fundamentally akin to dried seaweed, which has solely been reduced in size into the form of the powder, they are also suitable and fit for human consumption. Since these processes are limited to seaweed preparation, no further than drying or reduction in size, we find that both “Aquamin F” and “Lithothanmium” powders are classifiable under subheading 1212.21.0000, HTSUSA.
Heading 2106, HTSUS, provides for food preparations not specified or included elsewhere in the schedule. Classification under heading 2106, HTSUS, would only occur if the terms of no other heading in the schedule adequately describe the instant product. Since the subject calcified seaweed powders are specifically classified in heading 1212, HTSUS, these products cannot be classified in heading 2106, HTSUS. Therefore, heading 2106, HTSUS, is excluded from any consideration.
HOLDING:
By application of GRI 1, the subject calcified seaweed powders are classified under subheading 1212.21.0000, HTSUSA, which provides for: “Locust beans, seaweeds and other algae, sugar beet and sugar cane, fresh, chilled, frozen or dried, whether or not ground; fruit stones and kernels and other vegetable products (including unroasted chicory roots of the variety Cichorium intybus savitum) of a kind used primarily for human consumption, not elsewhere specified or included: Seaweeds and other algae: Fit for human consumption.” The general, column one, rate of duty is Free.
You are instructed to GRANT the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division